This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Regulations, based on a stipulation
of facts by the parties, who have agreed that no material issue of fact exists.
The General Counsel, the Respondent and the Union filed briefs with the
Authority.(1)

The complaint alleges that the Respondent violated section 7116(a)(1)
and (5) of the Federal Service Labor-Management Relations Statute (the Statute)
by interfering with the bargaining relationship between the Morgantown Energy
Technology Center (METC) and the Union when it disapproved a provision that had
been included in the parties' collective bargaining agreement. The complaint
further alleges that because inclusion of the provision had been ordered by the
Federal Service Impasses Panel (Panel), the Respondent's disapproval violated
section 7116(a)(1) and (6) of the Statute.

For the reasons stated below, we find that the Respondent violated the
Statute, as alleged.

II. Stipulation

On April 6, 1993, the Panel issued an Order in 93 FSIP 14,
directing the METC and the Union to adopt the following provision into their
term agreement.

The Employer will be obligated to bargain in good faith on any
negotiable Union-initiated proposals concerning matters that are not contained
in or covered by the collective bargaining agreement, unless the Union has
waived its right to bargain about the subject matter involved.

The Respondent argues that its disapproval of the provision does not
constitute an unfair labor practice. In support, the Respondent asserts that
the United States Court of Appeals for the Fourth Circuit held, in Social
Security Administration v. FLRA, 956 F.2d 1280 (4th Cir. 1992) (SSA
v. FLRA), that requiring an agency to bargain midterm over union-initiated
proposals was inconsistent with "the paramount right of the public to as
effective and efficient a Government as possible." Respondent's Brief at 3. In
the Respondent's view, the court's rationale applies without regard to whether
a union's right to bargain "exists per se or . . . by negotiation." Id.
The Respondent maintains that because the METC is located within the
jurisdiction of the Fourth Circuit, SSA v. FLRA should control this
case. The Respondent adds that, under the provision, "rolling bargaining will
occur with the result of a great diminution of stability in the labor relations
program and a great increase in the costs of bargaining and the number of
disputes." Respondent's Brief at 4.

B. General Counsel

The General Counsel argues that this case "essentially concerns the
negotiability" of the Panel-imposed provision. General Counsel's Brief at 3.
The General Counsel relies on previous Authority decisions which held that,
absent waiver, an agency is obligated to bargain over union-initiated midterm
proposals relating to matters that are not contained in or covered by a
collective bargaining agreement.(2) According to the General Counsel, these decisions establish
that provisions requiring such bargaining are negotiable. The General Counsel
argues that, as the Panel-imposed provision is negotiable, the Respondent
violated section 7116(a)(6) of the Statute by disapproving it and, in turn,
violated section 7116(a)(5) because the disapproval constituted unlawful
interference with the bargaining relationship between METC and the Union.

C. Union

The Union notes that the Authority has declined to follow SSA v.
FLRA. The Union also maintains that the Panel-ordered provision is fully
consistent with the Statute and relevant Authority decisions.

IV. Analysis and Conclusions

A. Section 7116(a)(1) and (6) of the Statute

An agency acts at its peril in disapproving a Panel-imposed provision.
If, on review in an unfair labor practice proceeding,(3) the provision is found negotiable,
then the disapproval constitutes a failure or refusal to cooperate in "impasse
decisions" in violation of section 7116(a)(1) and (6) of the Statute.
SeeDepartment of the Treasury and Internal Revenue Service,
22 FLRA 821, 827-28 (1986) (Department of the Treasury). In this
case, we find, for the reasons set forth below, that the disputed provision is
negotiable and that, therefore, the Respondent violated the Statute by
disapproving it.

A provision is negotiable under section 7117 of the Statute unless, as
relevant here, it is inconsistent with law (including the Statute),
Government-wide regulation, or an agency regulation for which the agency has
established a compelling need. The Respondent argues in this case that the
disputed provision is inconsistent with the Statute as it has been interpreted
by the Fourth Circuit's decision in SSA v. FLRA. However, the Fourth
Circuit did not address the negotiability of a provision for
union-initiated midterm bargaining; the court addressed only whether, apart
from any contractual obligation, an agency is required under the Statute to
engage in such bargaining.(4) Accordingly, that decision does not persuade us to find the
disputed provision in this case nonnegotiable.(5)

Respondent makes two other related arguments. First, the Respondent
claims that the provision would result in "rolling bargaining" that would
increase the costs of negotiations and the number of bargaining disputes.
Respondent's Brief at 2, 4. Second, the Respondent claims that the
provision is inconsistent with the public's right to "as effective and
efficient a Government as possible." Id. at 3.

The claim that the provision would create disruption in the bargaining
process and require negotiations at any time on a union-initiated midterm
proposal that "does not specifically overturn language previously agreed to" is
not properly before us in this proceeding because it does not constitute a
negotiability argument under section 7117 of the Statute.(6)Id. at 2. Instead, the
argument is addressed to the merits of the proposal; it was raised before, and
considered by, the Panel. See 93 FSIP 14, Panel Release No. 314 (April
8, 1993). Accordingly, it does not provide a basis on which to find the
provision nonnegotiable.

Although not clearly framed as a negotiability argument, the
Respondent's reference to the provision's alleged inconsistency with an
"effective and efficient Government" can be construed to question whether the
provision is nonnegotiable as inconsistent with section 7101 of the
Statute.(7)SeeAmerican Federation
of Government Employees, Local 1995 and U.S. Department of Energy, Morgantown
Energy Technology Center, Morgantown, West Virginia, 47 FLRA 470,
472-73 (1993) (Department of Energy).(8) The Authority previously has rejected a similar argument,
finding that a reopener proposal was not inconsistent with section 7101.
Id.; cf.United Power Trades Organization and U.S. Department
of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA
1145, 1168-69 (1992) (Authority rejected argument that finding negotiable
proposed time limits for filing certain claims was inconsistent with section
7101(b)). The Respondent's conclusory arguments provide no basis for reaching a
different result in this case. Accordingly, we find that the disputed provision
is not inconsistent with section 7101 of the Statute. Butcf.SSA v. FLRA, 956 F.2d at 1288 (dictum) (court stated that
"[a]pproval of union-initiated midterm bargaining would also contravene many of
the basic purposes of the [Statute]" including "'the paramount right of the
public to as effective and efficient a Government as possible.'") (citation
omitted).

Based on the foregoing, we conclude that the disputed provision is not
inconsistent with the Statute or any other law, Government-wide regulation, or
agency regulation for which a compelling need has been established.
Accordingly, it is negotiable and the Respondent's disapproval of it violated
section 7116(a)(1) and (6) of the Statute. See Department of the
Treasury.

B. Section 7116(a)(1) and (5) of the Statute

It is a violation of section 7116(a)(5) "to refuse to consult or
negotiate in good faith with a labor organization as required by this
chapter[.]" The impasse resolution procedures of the Panel operate as one
aspect of the collective bargaining, or negotiation, process. For
example, Social Security Administration, 35 FLRA 296, 304
(1990). As such, we conclude that an agency violates section 7116(a)(5) if it
refuses to comply with the lawful orders of the Panel or interferes with
efforts to do so by the parties at the level of exclusive representation.

As applicable here, the record shows that the parties at the level of
exclusive recognition incorporated the disputed provision--which, for the
reasons discussed above, is negotiable--into their collective bargaining
agreement at the Panel's direction. Accordingly, when the Respondent improperly
disapproved the provision, it unlawfully interfered with the collective
bargaining process between the local parties and, thereby, violated section
7116(a)(1) and (5) of the Statute. SeegenerallyDepartment of
Defense Dependents Schools (Alexandria, Virginia), 33 FLRA 659, 665-66
(1988) (adopting judge's conclusion that the agency's disapproval of a
Panel-imposed provision constituted a failure to comply with an impasse
decision in violation of section 7116(a)(6) and an unlawful interference with
the bargaining relationship between the parties at the local level in violation
of section 7116(a)(5)).

In reaching this result, we note that in prior decisions the Authority
has refrained from addressing alleged violations of provisions of the Statute
in addition to section 7116(a)(1) and (6), where findings as to the additional
violations would not affect the remedy. Department of the Treasury,
22 FLRA at 829 n.8; seealsoU.S. Army Corps of
Engineers, Kansas City District, Kansas City, Missouri, 16 FLRA 456,
461 (1984). However, we conclude that it will best effectuate the purposes and
policies of the Statute to address all the allegations of the complaint in this
case, thereby providing fuller guidance to the labor-management community.

V. Order

Pursuant to section 2423.29 of the Authority's Regulations and section
7118 of the Federal Service Labor-Management Relations Statute, the U.S.
Department of Energy shall:

1. Cease and desist from:

(a) Failing and refusing to comply with the Decision and Order of the
Federal Service Impasses Panel in 93 FSIP 14, by disapproving a negotiable
provision ordered to be included in a collective bargaining agreement between
the Morgantown Energy Technology Center (METC) and the American Federation of
Government Employees, Local 1995, AFL-CIO (Union).

(b) Disapproving a negotiable provision and, thereby, interfering with
the bargaining relationship between the METC and the Union.

(c) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Rescind its disapproval of the provision imposed by the Federal
Service Impasses Panel in 93 FSIP 14 and direct the METC to incorporate
the provision in its collective bargaining agreement with the Union.

(b) Post at its facilities at the METC, copies of the attached Notice
on forms to be furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the Secretary of Energy and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to ensure
that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Regulations, notify
the Regional Director, Washington, D.C. Regional Office, Federal Labor
Relations Authority, in writing, within 30 days from the date of this Order, as
to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to comply with the Decision and Order of the
Federal Service Impasses Panel in 93 FSIP 14 by disapproving a negotiable
provision ordered to be included in a collective bargaining agreement between
the Morgantown Energy Technology Center (METC) and the American Federation of
Government Employees, Local 1995, AFL-CIO (Union).

WE WILL NOT disapprove a negotiable provision and, thereby, interfere
with the bargaining relationship between the METC and the Union.

WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

WE WILL rescind our disapproval of the provision imposed by the Federal
Service Impasses Panel in 93 FSIP 14 and direct the METC to incorporate
the provision in its collective bargaining agreement with the Union.

___________________________(Agency)

Dated:__________ By: _______________________

(Signature) (Title)

This Notice must be posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other
material.

1. The General Counsel also moved to
correct the stipulation. We grant the motion, noting that it was unopposed and
that the corrections consist of minor word changes.

2. The General Counsel cites, among
other decisions, Internal Revenue Service, 29 FLRA 162 (1987)
(IRS), in which the Authority held that the Statute requires an agency
to engage in midterm bargaining over union-initiated proposals covering matters
that are not contained in or covered by a collective bargaining agreement
unless the union waived its right to bargain about the subject matter involved.
In IRS, the Authority adopted the decision of the United States Court of
Appeals for the District of Columbia Circuit in NTEU v. FLRA,
810 F.2d 295 (D.C. Cir. 1987).

3. A union may seek review of such a
disapproval either in an unfair labor practice proceeding under section 7118 of
the Statute and Part 2423 of the Authority's Regulations, or a negotiability
proceeding under section 7117 of the Statute and Part 2424 of the Authority's
Regulations. Interpretation and Guidance, 15 FLRA 564 (1984),
aff'd sub nom.American Federation of Government Employees, AFL-CIO
v. FLRA, 778 F.2d 850 (D.C. Cir. 1985).

4. The Authority has respectfully
declined to follow the Fourth Circuit's decision, adhering, instead, to the
holding in IRS. For example, U.S. Patent and Trademark
Office, 45 FLRA 1090, 1091 n.2 (1992), enforcement denied as to
other matters No. 92-2347 (4th Cir. Apr. 19, 1993). We recognize
that in ordering the adoption of this provision, the Panel relied on the
Authority's IRS decision. However, even if the Authority were to
overturn IRS and agree with the SSA v. FLRA decision in this
case, the outcome would not change. The Authority has previously upheld the
negotiability of proposals despite the absence of a statutory right concerning
the matter in question. For example, National Treasury Employees
Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6,
7 (1986), enforced sub nom.Department of the Treasury, U.S. Customs
Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988) (upholding the
negotiability of a proposal that the employer pay travel and per diem expenses
of union negotiators, and citing the Supreme Court's admonition in Bureau of
Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 107 n.17 (1983),
that although agencies are not required to pay such expenses, "unions may
presumably negotiate for such payments in collective bargaining
. . . ."); National Treasury Employees Union and U.S.
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
Washington, D.C., 43 FLRA 1442, 1445 (1992), remanded on other
grounds sub nom.National Treasury Employees Union v. FLRA,
30 FLRA F.3d 1510 (D.C. Cir. 1994) (finding negotiable a proposal that
agency investigators advise employees of their representation rights under
section 7114(a)(2)(B) of the Statute, despite acknowledging the agency's
argument that the proposal provided greater representational rights than those
set forth in the Statute). In addition, the Panel's rationale for its
conclusion does not limit the bases on which the Authority may determine a
provision to be negotiable. Cf.Tidewater Virginia Federal Employee
Metal Trades Council, AFL-CIO, and Norfolk Naval Shipyard, 32 FLRA 98, 100
(1988) ("The Authority must apply all relevant provisions of the Statute in
resolving negotiability appeals and is not limited to considering only the
arguments of the parties.").

5. Although the negotiability of the
provision does not depend on finding that there is an obligation under the
Statute to engage in the bargaining encompassed by the provision, we note that
the Authority previously has found that proposals that restate bargaining
obligations are consistent with the Statute. For example, National
Federation of Federal Employees, Local 405 and U.S. Department of the
Army, Army Information Systems Command, St. Louis, Missouri,
42 FLRA 1112, 1135-36 (1991); International Federation of Professional
and Technical Engineers, Local 128, 39 FLRA 1500, 1504 (1991).
The disapproved provision here constitutes such a restatement and, as such, is
negotiable on that ground as well. SeeMerit Systems Protection Board
Professional Association and Merit Systems Protection Board, Washington,
D.C., 30 FLRA 852 (1988) (Proposal 4).

6. We note, moreover, that the
Respondent's argument is inconsistent with the wording of the provision, which
provides for bargaining only over matters that are not "contained in or covered
by" the parties' collective bargaining agreement. Under Authority decisions,
the provision would not require bargaining on matters that are expressly
contained in an agreement and matters that are "so commonly considered to be an
aspect of the matter set forth . . . that the negotiations are presumed to have
foreclosed further bargaining over the matter, regardless of whether it is
expressly articulated in the provision." U.S. Department of Health and Human
Services, Social Security Administration, Baltimore, Maryland, 47 FLRA
1004, 1018 (1993).

7. Section 7101 provides, in pertinent
part, that the Statute "should be interpreted in a manner consistent with the
requirement of an effective and efficient Government."

8. Department of Energy, which
involved the same parties as the instant case, arose out of the same
negotiations over a contract article entitled "Mid-Term Negotiations."
Union's Brief at 1.